This is a complaint made by one Samir Kumar Chatterjee, son of Late Basanta Chatterjee, residing at Surendra Apartment, Flat No.8, at premises No.211, Garia Main Road, Kolkata-700 084 against (1) Dr. Animesh Chaki, residing at P-104, Subodh Park, Bansdroni, Kolkata-700 070, OP No.1, (2) Udayan Nursing Home & Investigation Complex, 200/1, N.S.C. Bose Road, P.S.-Jadavpur, Kolkata-700 047, OP No.2, praying for (a) a direction upon the OP to pay a sum of Rs.5,00,000/- to the Complainant by way of punitive damages for illegal activities with interest of 24%p.a., (b) a direction upon the OP to pay a sum of Rs.5,00,000/-by way of damage for the unwarranted harassment, suffering, mental and physical agony with interest of 24%p.a. from the date of complaint, (c) direction upon the OP to pay to Complainant Rs.2,00,000/- by way of special damages for the medical and other expenses incurred by the Complainant and (d) litigation cost of Rs.50,000/-.

            Facts in brief are that Complainant approached OP No.1 who is a renowned ophthalmologist and paid him the consultancy charges. After thoroughly examining the Complainant, OP No.1 informed him that he had developed advance immature cataract in his right eye and advised him to proceed for phaco surgery in the right eye for removal of the cataract.

            Complainant being an old person went to the nursing home on 31.5.2015 for surgery and was shocked after seeing horrified condition of the nursing home. Complainant had gone to the nursing home with his son who is also a medical practitioner. Complainant having already paid the money and on the assurance of the OP No.1 that surgery would not take place more than one hour, got phaco surgery done of his right eye. After that Complainant felt some uneasiness in the right eye and consulted the OP No.1 who after removal of the bandage informed that Complainant has developed a very serious case of Iris Herniation which is a rare complication in cataract surgery. Realising his mistake OP No.1 started blaming Complainant for such complication and told that Complainant rubbed his eye which resulted in such complication. However, Complainant pointed out that he is an old experienced person and he has not rubbed. OP No.1 told that he will have to undergo a second surgery. Again, 26.5.2015 was fixed for the said surgery and Complainant with his son booked the nursing home after paying Rs.1,500/-. Said surgery took about 45 minutes and OP No.1 assured that this time no wrong would happen. But, Complainant suffered uneasiness on the next day when the bandage was opened and the son of the Complainant observed that the right eye had reddened.

            Thereafter again Complainant visited OP No.1 and OP No.1 after seeing the Complainant was perplexed and advised him to approach a retina specialist. So, Complainant went to Sankar Netralaya at Mukundapur where he consulted the medical expert and the Complainant was diagonised with a case of acute choroid detachment with internal haemorrhage. At Sankar Netralaya he underwent surgery and thereafter any how Complainant’s condition could improve.

So, Complainant filed this case praying for relief as mentioned in the prayer portion.

            OP No.1 filed written version wherein he has denied the allegations made out in the complaint. Further, OP No.1 has stated that Complainant on 12.2.2015, more than three months before 31.5.2015 operated his left eye as the Complainant had developed advanced immature cataract by the OP No.1 at Udayan Nursing Home & Investigation Complex. Further, this OP has stated that Udayan Nursing Home was not new to the Complainant, as his left eye was operated.

            Complainant is 82 years’ old person. Complainant did not come within one month as per advice of the OP No.1. Complainant suffered from hypertension, Diabetes. Complainant was operated on 31.5.2015 for his right eye for phaco emulsification was posterior chamber intra ocular foldable lens implantation. Further, this OP has alleged that Complainant rubbed the right eye by his finger and so the complications arose. This OP has denied other allegations and prayed for dismissal of this case.

            OP No.2, one co-owner of Udayan Nursing Home, has filed written version and denied the allegations of the complaint. They have denied that Complainant paid Rs.18,012/- for surgical instruments. They have, further, denied that the allegations of the Complainant that the nursing home was horrified. So, OP No.2, nursing home, has also prayed for dismissal of the complaint.

Decision with reasons

            Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Against this OP No.1 has put certain questionnaire. OP No.2 has also put questionnaire to Complainant and Complainant has replied to the questionnaire of OP No.2, where Complainant has asserted that the condition of the nursing home was not proper. Further Complainant has stated that Dr. Chaki took all the money. Complainant has replied to the questionnaire of OP No.1 also wherein Complainant has admitted that the cataract on both the eyes was detected and he was operated in his left eye by Mr. Chaki in February, 2015.

             Further, it has been stated that the Complainant on 30.5.2015 the operation was done on right eye and again on 2.6.2015. Thereafter, Complainant has stated that he visited the Sankar Netralaya where he was again operated. Similarly, OPs have filed evidence to which Complainant has put questionnaire and OPs have filed affidavit-in-reply.

              Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

              On perusal of the prayer portion, it appears that Complainant has prayed for a direction by this Forum upon the OP No.1 to pay Rs.5,00,000/- by way of punitive damages for illegal acts of OP No.1 with interest of 24%p.a. from the date of presentation of this complaint.

               In this regard, it is clear that OP No.1 a renowned Doctor who had operated on 30.5.2015 of the right eye of the Complainant. Prior to this he did same surgery of left eye of the Complainant, but no complication arose. However, again on 2.6.2015 OP No.1 was compelled to make surgery of the right eye as the complication arose. So, the question arises as to whether the complication arose due to the conduct of OP No.1 and he was negligent in operating the surgry.

               Negligence is defined as absence from doing the act which the Doctor was expected to do in a given situation or doing an act which he was not required to do in the present case OP No.1 made phaco surgery. But, any how complication arose and again after three days OP No.1 made second operation. But this also could not yield the result and Complainant was compelled to go to Sankar Netralaya where another ailment was detected and again surgery was made at Sankar Netralaya. No doubt OP No.1 did the second surgery without charge but that act cannot justify the act of OP No.1 when he performed the operation on 30.5.2015. It might be that the act was not intentional. But, that does not provide any relief to the Doctor, so far as negligence is concerned. OP No.1 in his written version and affidavit-in-chief has made attempt to shift the claim on Complainant that he rubbed the right eye. But, this cannot be justified as because the complication arose to such an extent that OP No.1 himself was compelled to perform another surgery just after three days.

                As such, it is clear that OP No.1 did some act which amounted negligence and so Complainant was compelled to contact the Sankar Netralaya where he was again operated.

                OP No.2, Udayan Nursing Home and Investigation Complex has filed written version and prayed for dismissal of the complaint on the ground that the nursing home was not at all negligent and condition as stated by Complainant cannot be accepted because when the first operation of Complainant was made it was alright.

                Accordingly, it is clear, that the liability of the nursing home prima facie does not appear. However, when a nursing home engages doctors and that doctor performs operation the nursing home cannot take the plea that it is not liable. It might be that Dr. made some mistake due to the unwarranted situation prevailing in the nursing home.

                 As such, we are of the view that there is some sort of liability also of nursing home.

                 Further, the question of awarding punitive damage either to the Doctor or to the nursing home does not arise.

                 Prayer (c) is direction upon the OP to pay a sum of Rs.5,00,000/- for harassment of mental and physical agony.

                 No doubt the Complainant suffered harassment, mental and physical agony. But, for that the amount mentioned, appears to be excessive. At best, the Complainant is entitled to get Rs.50,000/- from OP No.1 for the negligent act of OP No.1 and Rs.10,000/- from the OP No.2 in place of the claim of Rs.5,00,000/-. Further, Complainant has claimed Rs.2,00,000/- by way of special damages for getting treatment at Sankar Netralaya which also appears to be excessive. However, Complainant is entitled to get Rs.30,000/- from OP No.1 and Rs.10,000/- from OP No.2 for the expenses incurred by him for treatment at Sankar Netralaya.

                Complainant has also prayed for litigation cost of Rs.50,000/-. However, since Complainant will be getting the above mentioned amount, we are of the view that there is no need to award separately litigation cost.

Hence,

ordered

                 CC/132/2016 and the same is allowed on contest in part. OP No.1 is directed to pay Rs.80,000/- to the Complainant within three months of this order and OP No.2 is directed to pay Rs.20,000/- to the Complainant within the same period, in default the amount shall carry interest @ 10% p.a., provided original prescriptions, vouchers and receipts are filed before this Forum.